State v. Reames , 308 Neb. 361 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/26/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. REAMES
Cite as 308 Neb. 361State of Nebraska, appellee, v.
Raela C. Reames, appellant.
___ N.W.2d ___
Filed February 5, 2021. No. S-20-318.
1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law, which
turns upon the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the interpreta-
tion of a statute or constitutional requirement.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. ____: ____. Before reaching the merits of the legal issue presented for
review, an appellate court must determine whether it has jurisdiction
over the matter before it.
4. ____: ____. Appellate courts have an independent obligation to ensure
they have appellate jurisdiction.
5. Jurisdiction: Time: Statutes: Appeal and Error. It is mandatory and
jurisdictional that a notice of appeal be filed within the time required
by statute.
6. Jurisdiction: Final Orders: Time: Appeal and Error. Under Neb.
Rev. Stat. § 25-1912(1) (Cum. Supp. 2018), where a notice of appeal is
not filed within 30 days from the entry of the final order appealed from,
an appellate court obtains no jurisdiction to hear the appeal, and the
appeal must be dismissed.
7. Jurisdiction: Judgments: Criminal Law: Words and Phrases:
Appeal and Error. A judgment is the final determination of the rights
of the parties in an action. In a criminal case, the judgment from which
an appellant may appeal is the sentence.
8. Criminal Law: Probation and Parole: Sentences. Under Neb. Rev.
Stat. § 29-2263(3) (Reissue 2016), a court may adjust conditions of
probation as changing circumstances warrant, but this statutory ability
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STATE v. REAMES
Cite as 308 Neb. 361to modify probation is not an opportunity to collaterally attack the sen-
tencing judgment or to reassess whether initial conditions of probation
were erroneous.
9. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
10. Final Orders: Appeal and Error. There are three types of final orders
which may be reviewed on appeal: (1) an order affecting a substantial
right in an action that, in effect, determines the action and prevents a
judgment; (2) an order affecting a substantial right made during a spe-
cial proceeding; and (3) an order affecting a substantial right made on
summary application in an action after a judgment is rendered.
11. Final Orders. There are many factors to be considered when determin-
ing whether an order affects a substantial right, such as (1) the impor-
tance of the right and (2) the importance of the effect on the right by the
order at issue.
12. Final Orders: Words and Phrases. A substantial right is a legal right,
not just a technical right.
13. Final Orders: Appeal and Error. An order affects a substantial right if
it affects the subject matter of the litigation, such as diminishing a claim
or defense that was available to the appellant prior to the order from
which he or she is now appealing.
14. Final Orders. Whether the effect of an order is substantial depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
15. Final Orders: Appeal and Error. An order affects a substantial right
when the right would be significantly undermined or irrevocably lost by
postponing appellate review.
16. Judgments: Appeal and Error. A party is not entitled to prosecute
error upon the granting of an order or the rendition of a judgment
when the same was made with his or her consent, or upon his or her
application.
17. Effectiveness of Counsel: Records: Appeal and Error. When a
defend­ant’s trial counsel is different from counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffec-
tive performance which is known to the defendant or is apparent from
the record.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Appeal dismissed.
Joe Nigro, Lancaster County Public Defender, and Megan
Kielty for appellant.
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STATE v. REAMES
Cite as 308 Neb. 361Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Raela C. Reames purports to appeal her sentence of pro-
bation stemming from a conviction in the district court for
Lancaster County, Nebraska. Three days after the sentencing,
the court modified the order of probation. Reames filed her
notice of appeal 31 days after the initial sentencing order was
filed and 28 days after the amended order of probation was
filed. For various reasons, we lack jurisdiction to hear this mat-
ter and we dismiss the appeal.
I. BACKGROUND
Following a jury trial, Reames was found guilty of one
count of possession of a controlled substance. On March 17,
2020, the district court sentenced Reames to 1 year of pro-
bation. One of the conditions of probation was that Reames
reside in Lancaster County and obtain permission from her pro-
bation officer before changing her address. At the conclusion
of the sentencing hearing, Reames’ counsel asked the court for
permission to withdraw her motion for appellate bond, because
Reames indicated to her that she “no longer desire[d] to appeal
the matter.”
On March 20, 2020, the court entered an amended order of
probation, which Reames had signed on March 18. The order
modified the probation to allow Reames to reside in Kansas
instead of Nebraska. The rest of the March 17 sentencing order
remained in effect.
On April 17, 2020, Reames, through trial counsel, filed a
notice of appeal, seeking to appeal the March 17 sentencing
order. On June 1, the Nebraska Court of Appeals entered a
miscellaneous entry determining that Reames’ notice of appeal
was timely as to the March 20 amended order of probation,
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STATE v. REAMES
Cite as 308 Neb. 361but untimely as to the March 17 sentencing order. The court
instructed the parties to address, in their respective briefs, why
the appeal should not be dismissed for lack of jurisdiction.
On June 29, 2020, Reames’ trial counsel filed a motion to
withdraw because Reames had been appointed a new attorney
for the appeal. The court sustained the motion to withdraw on
July 16. Reames filed her appellant’s brief on August 6 through
her new counsel.
II. ASSIGNMENT OF ERROR
On appeal, Reames assigns, restated, that she received inef-
fective assistance of counsel when her trial counsel failed to
timely appeal from the March 17, 2020, sentencing order.
III. STANDARD OF REVIEW
[1] Whether a claim of ineffective assistance of counsel
can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. 1
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 2
IV. ANALYSIS
[3,4] Reames’ sole assignment of error is that her trial coun-
sel was ineffective for failing to timely appeal the March 17,
2020, sentencing order. However, before reaching the merits
of the legal issue presented for review, we must determine
whether we have jurisdiction over this matter. 3 Appellate courts
have an independent obligation to ensure we have appellate
1
State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
2
State v. Paulsen, 304 Neb. 21, 932 N.W.2d 849 (2019); State v. McGuire,
301 Neb. 895, 921 N.W.2d 77 (2018).
3
See Paulsen, supra note 2.
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STATE v. REAMES
Cite as 308 Neb. 361jurisdiction. 4 For reasons discussed below, we find this court
lacks the requisite appellate jurisdiction over this appeal.
As a threshold matter, we acknowledge that there is some
confusion as to whether Reames is appealing from the March
17, 2020, sentencing order or from the March 20 amended
order of probation. For sake of completeness, we will dis-
cuss both.
1. March 17, 2020, Sentencing Order
We first analyze whether Reames timely appealed from the
March 17, 2020, sentencing order. Neb. Rev. Stat. § 25-1912(Cum. Supp. 2018) provides in relevant part as follows:
(1) The proceedings to obtain a reversal, vacation, or
modification of judgments and decrees rendered or final
orders made by the district court, including judgments
and sentences upon convictions for felonies and mis­
demeanors, shall be by filing in the office of the clerk of
the district court in which such judgment, decree, or final
order was rendered, within thirty days after the entry of
such judgment, decree, or final order, a notice of intention
to prosecute such appeal signed by the appellant or appel-
lants or his, her, or their attorney of record and . . . by
depositing with the clerk of the district court the docket
fee required by section 33-103.
[5-7] Further, we have held that it is mandatory and juris-
dictional that a notice of appeal be filed within the time
required by statute 5; where a notice of appeal is not filed
within 30 days from the entry of the final order appealed
from, as required by § 25-1912(1), this court obtains no
jurisdiction to hear the appeal, and the appeal must be dis-
missed. 6 We have also held that a judgment is the final deter-
mination of the rights of the parties in an action and that in a
4
Id. See, State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018); State v.
Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
5
State v. Flying Hawk, 227 Neb. 878, 420 N.W.2d 323 (1988).
6
Id.- 366 -
Nebraska Supreme Court Advance Sheets
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STATE v. REAMES
Cite as 308 Neb. 361criminal case, the judgment from which an appellant may
appeal is the sentence. 7
Reames, through her trial counsel, filed her notice of appeal
on April 17, 2020, which was 31 days after the sentencing
order was entered. Therefore, to the extent that Reames is
attempting to appeal the March 17 sentencing order, such
appeal is untimely and we dismiss it for lack of jurisdiction.
2. March 20, 2020, Amended Order
(a) Jurisdiction
Recognizing that an appeal from the March 17, 2020, sen-
tencing order would be untimely, Reames seems to instead
treat this appeal as a direct appeal from the March 20 amended
order of probation. Though Reames acknowledges that she is
unable to collaterally attack the March 17 sentencing order,
she contends that the entry of the amended order of probation
allows her to argue the ineffective counsel issue as if this were
a direct appeal of the original judgment.
As discussed above, the amended order of probation altered
a condition of Reames’ probation to allow her to reside in
Kansas instead of in Nebraska. Neb. Rev. Stat. § 29-2263(3)
(Reissue 2016) provides in part that “[d]uring the term of pro-
bation, the court on application of a probation officer or of the
probationer, or its own motion, may modify or eliminate any of
the conditions imposed on the probationer or add further condi-
tions authorized by section 29-2262.”
[8] In interpreting § 29-2263(3), we have explained that
this statute allows a court to adjust conditions of probation as
changing circumstances warrant, but that this statutory abil-
ity to modify probation is not an opportunity to collaterally
attack the sentencing judgment or to reassess whether initial
conditions of probation were erroneous. 8 Thus, Reames is
7
Paulsen, supra note 2; State v. Thalmann, 302 Neb. 110, 921 N.W.2d 816(2019). See State v. Melton, ante p. 159, ___ N.W.2d ___ (2021).
8
See Paulsen, supra note 2.
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STATE v. REAMES
Cite as 308 Neb. 361correct that the order amending a condition of her probation
does not allow her the opportunity to collaterally attack her
original sentence. Additionally, the order amending a condition
of probation does not allow Reames the opportunity to raise
other assignments of error which could have been raised in a
timely direct appeal. 9 Therefore, the issues before us become
whether the March 20, 2020, amended order is a final, appeal-
able order and what, if any, alleged errors could be raised in
such an appeal. We recently considered a similar question in
State v. Paulsen. 10
In Paulsen, on January 16, 2018, the defendant, Larry
Paulsen, was sentenced to a term of 24 months of probation
stemming from a conviction for driving under the influence.
On August 28, Paulsen filed a motion to modify the condi-
tions of his probation, asking the court to remove the prohibi-
tion to possess firearms. After his motion was denied, Paulsen
appealed the order denying modification, and as a result, we
were tasked with determining whether the order was a final,
appealable order.
[9,10] There, we noted that for an appellate court to acquire
jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is
­taken. 11 We further noted that under Neb. Rev. Stat. § 25-1902(Reissue 2016), there are three types of final orders which
may be reviewed on appeal: (1) an order affecting a substan-
tial right in an action that, in effect, determines the action and
prevents a judgment; (2) an order affecting a substantial right
made during a special proceeding; and (3) an order affecting
a substantial right made on summary application in an action
after a judgment is rendered. 12 We determined that Paulsen’s
appeal fell into the third category, because an order “‘upon
9
See id.10
Id.11
Id.; Simms v. Friel, 302 Neb. 1, 921 N.W.2d 369 (2019).
12
Paulsen, supra note 2. See Thalmann, supra note 7.
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STATE v. REAMES
Cite as 308 Neb. 361a summary application in an action after judgment’” is “‘an
order ruling on a postjudgment motion in an action,’” and
that “Paulsen’s motion seeking a modification of his probation
terms plainly meets that definition.” 13
[11-15] We next considered whether the denial of Paulsen’s
motion to modify probation affected a substantial right. In
doing so, we noted that there are many factors to be considered
when determining whether an order affects a substantial right,
such as (1) the importance of the right and (2) the importance
of the effect on the right by the order at issue. 14 Regarding the
latter, we have stated that a substantial right is a legal right,
not just a technical right. 15 We have further stated that an order
affects a substantial right if it affects the subject matter of the
litigation, such as diminishing a claim or defense that was
available to the appellant prior to the order from which he or
she is now appealing. 16 Additionally, whether the effect of an
order is substantial depends on whether it affects with finality
the rights of the parties in the subject matter. 17 Moreover, an
order affects a substantial right when the right would be signif-
icantly undermined or irrevocably lost by postponing appellate
review. 18 Ultimately, we determined that the denial of Paulsen’s
motion did affect a substantial right and, as a result, we found
that we had appellate jurisdiction to consider the merits of
Paulsen’s appeal.
In turning to the matter before us, Reames’ appeal also falls
into the third category of final orders, because it appeals an
order ruling on a postjudgment motion in an action. However,
we find it difficult to appreciate how the amended order of
probation affected a substantial right.
13
Paulsen, supra note 2, 304 Neb. at 25, 932 N.W.2d at 852.
14
See, Paulsen, supra note 2; Thalmann, supra note 7.
15
See id.16
Id.17
Id.18
Id.- 369 -
Nebraska Supreme Court Advance Sheets
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STATE v. REAMES
Cite as 308 Neb. 361Though requiring a probationer to live in a specific location
might affect a substantial right in some cases, here Reames
was merely allowed to reside in Kansas instead of Nebraska.
The record is clear that at the time of sentencing, Reames was
already living in Kansas; as such, allowing her to continue liv-
ing in Kansas would not affect the subject matter of the litiga-
tion by diminishing a claim or defense that was available to her
prior to the amended order from which she is now appealing.
Because no substantial right was affected by the amended order
of probation, we find the March 20, 2020, amended order was
not a final, appealable order from which Reames can prop-
erly appeal.
[16] Additionally, we find it difficult to say that Reames
was aggrieved by the amended order of probation. Only a
party aggrieved by an order or judgment can appeal; one who
has been granted that which he or she sought has not been
aggrieved. 19 Simply put, “‘a party is not entitled to prosecute
error upon the granting of an order or the rendition of a judg-
ment when the same was made with his [or her] consent, or
upon his [or her] application.’” 20
Though the record is unclear as to who requested the modi-
fication, it appears that Reames took no issue with it. In fact,
at her sentencing hearing, Reames indicated that she preferred
to reside in Kansas. Additionally, prior to the court’s issuing
the modification, Reames signed the proposed order indicat-
ing that she had received a copy of it and agreed to abide by
the modified condition. Further, on appeal, Reames assigned
no error to the amended order of probation. Because Reames
was not aggrieved by the amended order of probation, we find
Reames is not entitled to prosecute error upon the granting of
the March 20, 2020, amended order.
19
Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d
726 (2004).
20
Id. at 852, 678 N.W.2d at 729-30, quoting Robins v. Sandoz, 175 Neb. 5,
120 N.W.2d 360 (1963). Accord Mahlendorf v. Mahlendorf, ante p. 202,
___ N.W.2d ___ (2021).
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STATE v. REAMES
Cite as 308 Neb. 361Therefore, to the extent that Reames is attempting to appeal
the March 20, 2020, amended order of probation, we lack juris-
diction over such appeal and dismiss it.
(b) Postconviction
Although we have concluded that we lack jurisdiction to
hear this case, for the sake of completeness, we also address
Reames’ contention that she was obligated to raise the issue of
ineffective assistance of counsel in this appeal. An appellate
court may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur
during further proceedings. 21
[17] When a defendant is represented both at trial and on
direct appeal by the same counsel, the defendant’s first oppor-
tunity to assert ineffective assistance of trial counsel is in a
motion for postconviction relief, even if trial counsel elects not
to file a direct appeal at all. 22 However, when a defendant’s
trial counsel is different from counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial coun-
sel’s ineffective performance which is known to the defendant
or is apparent from the record. 23
Reames asserts that because her counsel on appeal dif-
fers from her trial counsel, she was “obligated” to raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to her or is apparent from the record. 24
However, this reasoning holds true only if Reames had timely
appealed from the criminal judgment, which was the March
17, 2020, sentencing order. Since Reames did not timely
appeal the initial sentencing order, she lost the opportunity
to file a direct appeal in this case. As a result, her first avail-
able opportunity to raise issues of ineffective assistance of
21
Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d
782 (2000).
22
State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).
23
State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
24
See, id.; State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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STATE v. REAMES
Cite as 308 Neb. 361trial counsel for failing to file a timely appeal would be in a
motion for postconviction relief. 25 Therefore, as acknowledged
by the State in oral argument, Reames’ new counsel was not
obligated or authorized to raise the issue of ineffective assist­
ance of counsel in her appeal of the March 20 amended order
of probation.
V. CONCLUSION
Regardless of which order Reames is appealing from, we
lack appellate jurisdiction over this case. To the extent Reames
is appealing from the March 17, 2020, sentencing order, such
appeal is untimely because it was filed 31 days after the sen-
tencing order was entered. To the extent Reames is appealing
from the March 20 amended order, such appeal is improper
because the amended order was not a final, appealable order
and because Reames was not aggrieved by the amended order.
Therefore, because there is no proper, timely appeal in this
case, we dismiss for lack of jurisdiction.
Appeal dismissed.
25
See, State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020); State v.
Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).